Judges Gather to Learn the Latest Surveillance Technologies

June 4, 2015 —

As lawmakers a few blocks away on Capitol Hill were voting on the USA Freedom Act — ending the bulk collection of Americans’ communications under Section 215 of the Patriot Act — 65 federal judges came to Georgetown Law to learn the latest on surveillance technologies. 

“National Security, Surveillance Technology and the Law,” sponsored by Georgetown Law and the Federal Judicial Center June 1 and 2, sought to assist the nation’s judiciary by thoroughly explaining, for example, just how a Stingray device helps law enforcement officers track cell phones. Panels then dove into the legal questions surrounding the use of each particular technology, whether it involved the Fourth Amendment or the Foreign Intelligence Surveillance Act.  

Technology almost unimaginable when the Patriot Act was signed just 14 years ago is creating novel challenges as everything from hearing aids to refrigerators moves online. Will law enforcement be able to obtain information from an Internet hearing aid service to determine if a suspect was in a noisy bar on the night of a crime? 

“I’ll just give an order to his hearing service provider to turn on his hearing aids and transmit the data to me, …” said Philip R. Reitinger of the Center for Strategic and International Studies in a keynote address on the Internet of Things. “Why will [police] need wires anymore? [The suspect] will have the wire in his body.” 

Many judges participated as experts, including several well known to Georgetown. M. Margaret McKeown (L’75, H’05) of the U.S. Court of Appeals for the 9th Circuit helped Professor David Cole, Judge David B. Sentelle of the D.C. Circuit and others explore relevant Fourth Amendment decisions. Judge Stephen W. Smith of the U.S. District Court for the Southern District of Texas appeared in a session on computer architecture and remote access.

The expiration of Patriot Act’s Section 215 created much discussion on a panel moderated by Professor Viet Dinh. Judges John D. Bates and Beryl A. Howell of the U.S. District Court for the District of Columbia and Judge Leonie Brinkema of the U.S. District Court for the Eastern District of Virginia shared their expertise in national security matters while the Cato Institute’s Julian Sanchez provided an (often real-time) update on what was happening on the Hill. 

Pulitzer Prize-winning reporter Barton Gellman of the Washington Post, Robert S. Litt of the Office of the Director of National Intelligence, Google's Richard Salgado and Adjunct Professor Marc Rotenberg of the Electronic Privacy Information Center were among the headliners in a session on cloud computing and global communications led by Professor Laura Donohue. 

In her closing remarks, Judge (and former Georgetown Law Professor) Nina Pillard of the U.S. Court of Appeals for the D.C. Circuit called the conference “spectacularly” successful. “This is trying to prepare us for something that’s really impossible to be fully prepared for...to make decisions in this increasingly complex world, with these very difficult and quickly changing kinds of technology,” she said. “The stakes, as we’ve heard, are [very] high.”